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How does a death certificate transfer work?

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Part of planning for the future is getting your estate in order and figuring out who you want your assets transferred to upon your death. If you own real estate and want to transfer it to your loved ones without going through probate, a death transfer certificate (TOD) may be the solution. Because a TOD deed, also known as a beneficiary deed, bypasses probate, it can simplify the inheritance process and reduce costs for your loved ones.

Consider working with a financial advisor to plan the distribution of your estate upon your death.

What is an act of transfer on death (TOD)?

TOD deeds are legal documents that can be filed at local land registry offices and do not require the notice of the beneficiary, although it is probably a good idea to prevent them. Each state has its own requirements as to what the act entails. TOD acts are offered in 27 states (and DC).

These acts are revocable once filed. Beneficiaries have no ownership rights in your property while you are still alive. You retain full control of the property, including liability for any mortgage debt, taxes, liens and the like. After your death, ownership will pass to your designated beneficiary, along with all debts attached to it.

A TOD deed includes much of the same information that can be found on typical real estate deeds, including:

It will also name the person you want to take possession of your property upon your death, along with a statement that you will keep possession of it until your death.

How does the death certificate transfer work?

Legacy real estate ownership documents

Legacy real estate ownership documents

A transmission by death certificate is quite simple: all you have to do is name the person (s) to whom you wish to inherit your property after your death. Once this document is signed and filed with your local land registry office, it is considered valid until replaced or revoked. In the meantime, nothing else changes: you continue to own your home, make the applicable mortgage payments, pay property taxes, make repairs, and more.

You can even sell, refinance, rent or mortgage the property, if you wish. The TOD Deed does not give your beneficiary any control or claim over your property while you are still alive.

Upon your death, ownership of the property will automatically and immediately transfer to your beneficiary, along with any mortgage balance, lien or judgment on the property. It does not need to go through probate and is not considered a gift (so donation taxes do not apply).

In order to claim the property, your beneficiary will likely need to provide a death certificate. Depending on your state, they may also need a sworn affidavit. The requirements of this affidavit will vary from state to state, so it will need to take into account the laws of the state in which the property is located.

Eligibility

Death certificate transfers are not available in all states. Eligibility also depends on the state where the property is located, not where the owner or beneficiary resides.

Currently, TOD acts (or similar alternatives) are offered in 27 states and the District of Columbia: Alaska, Arizona, Arkansas, California, Colorado, Hawaii, Illinois, Indiana, Kansas, Minnesota, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Texas, Virginia, Washington, West Virginia, Wisconsin and Wyoming. (In Michigan, a Lady Bird act offers similar benefits.)

Advantages and disadvantages of a transfer by death certificate

Before signing a death certificate transfer, there are a few things to keep in mind.

Advantages

  • You keep the property as long as you are alive. Your beneficiary does not take over until your death; until then you make all the decisions about your property and can even sell it if you wish. This makes a TOD deed a better choice than, say, adding someone as a co-owner on your property. (In that case, you would need their permission before you sell, refinance, mortgage, or even improve the home.)

  • it is revocable. If you choose to withdraw or revoke your death certificate transfer, you can do so at any time. You can also replace an existing TOD act with a new one, if you wish.

  • It’s simple. Establishing a death certificate transfer is easy. Just sign the document and file it with your county land registry office. You don’t even have to tell the recipient that you have.

  • Anyone can be named a beneficiary. You can use a death certificate transfer to transfer property to anyone when you die. This includes family members, friends, other loved ones, or even charitable causes.

The inconvenients

  • Co-ownership premium. If the property is jointly owned with someone else, that property replaces a TOD deed. The property will transfer to the other owner if you die. Once they also pass away, the TOD Act will go into effect (if it is still valid).

  • If your beneficiary dies first, your property will still be probated. If you die with or after your beneficiary and you do not have a named replacement beneficiary, your property will be probated along with the remainder of your estate.

The bottom line

Senior signing a TOD deed

Senior signing a TOD deed

A TOD deed can be used to transfer real estate to others after your death. Because a TOD deed bypasses probate, it can simplify the inheritance process and reduce costs for your loved ones. While a TOD deed does not fall under the umbrella of gift tax, there are still inheritance tax implications to consider and the property may be subject to inheritance tax. However, if you haven’t established a trust yet and want to prevent your property from going through probate after you die, consider whether a TOD deed might be the right choice.

Advice on estate planning

  • You don’t have to go it alone when it comes to estate planning. A financial advisor can provide you with valuable information and advice as you approach and approach retirement. SmartAsset’s free tool can connect you with up to three financial advisors in your area in minutes. If you are ready, start now.

  • Social Security is an important part of many Americans’ retirement plans, but do you know how much your benefits will be? SmartAsset’s free social security calculator can tell you how much you can expect to receive based on your current age, income, and expected retirement age.

Photo credit: © iStock.com / elenaleonova, © iStock.com / designer491, © iStock.com / RichLegg

The article How a death certificate transfer works first appeared on the SmartAsset blog.


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